Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03447/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 February 2017
On 17 February 2017

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

master BLA
(ANONYMITY DIRECTION MADE)
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms S Akinbolu, Counsel instructed by Kesar & Co Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, a citizen of Iraq, born on 1 April 1999, appeals with permission against a decision of Judge of the First-tier Tribunal Chana who in a decision promulgated on 18 November 2016 dismissed the appellant's appeal against a refusal of asylum and a decision to remove which had both been made on 14 March 2015.

2. The appellant's claim was based on his fear of returning to Iraq because he had no family to return to and ISIS had taken over the village of Gamesh Tapa near Gwer in the province of Makhmour where he had lived since birth. The Secretary of State accepted that the appellant was an Iraqi of Kurdish ethnicity and that ISIS had taken over his home village, but did not accept that his family were missing. It was stated that he would have a sufficiency of protection in Kurdistan and that internal relocation was open to the appellant. It was asserted that Makhmour had been recaptured from ISIS and that residents were returning there. It was argued that the humanitarian situation in Baghdad and the south of Iraq as well as the Kurdistan region of Iraq was such that it would not be a breach of the appellant's Article 3 rights for him to be returned there. It was considered that there were no exceptional circumstances in his case and that although there had been an obligation on the respondent to consider family tracing, the appellant had not co-operated with that.

3. When hearing the appeal Judge Chana found that the appellant did not fear persecution for a Convention reason. She stated that it had been accepted that it was for her to determine whether or not his family were missing, whether or not he could seek protection from the Iraqi authorities, and whether or not he could internally relocate within Iraq, as well as the feasibility of a return to Iraq having regard to the country situation and after considering the criteria in the country guidance case of AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC). The judge gave reasons why she did not believe that the appellant had lost touch with his family and placed weight on the fact that he had said that he did not know all the numbers of his father's telephone number. She then stated that she considered that the appellant could internally relocate to an area of Iraq where he would be safe and said that it would not be unduly harsh for him to live in Kurdistan and that he would be able to live a relatively normal life there. She quoted from the determination in AA where it was said the position of Iraqi Kurds, who were not from the IKR, was that they could gain temporary entry to the IKR, that formal permission to remain could be obtained if employment was secured and that the authorities in the IKR did not proactively remove Kurds whose permits have come to an end. She stated that the appellant had said that he had an Iraqi identity card "of Kurdish ethnicity" and she therefore considered that a "laissez- passer" could be issued by the Iraqi Embassy so that the appellant could travel back to Iraq. She went on to say "There are direct flights to Irbil with a short stopover in Baghdad which means that there would be no potential for the appellant to face undue harshness in that city".

4. The grounds of appeal argued that the judge had not properly dealt with the fact that the Secretary of State had not complied with her obligation to trace the appellant's family, nor dealt with the fact that there were no adequate reception facilities in Iraq. They emphasised that the appellant was 17 at the date of the hearing. They stated the judge had erred by not dealing with the facts as they were at the date of the hearing, but had considered what they might be at a future date. That was the context in which the judge should have considered the issue of relocation. It was also argued the judge had erred in her finding that the respondent had failed in her duty to trace as set out in the judgment in KA (Afghanistan) [2012] EWCA Civ 1014.

5. It was also claimed that the judge had erred in her consideration of the country guidance in AA and in the fact that she had not considered the practicalities of travel from Baghdad to his home area where he would be able to obtain a replacement ID card.

6. First-tier Tribunal Judge Parkes stated that he considered that because of the people trafficking arrangement which had been made to bring the appellant to Britain, the judge was entitled to find that he was in contact with his family and was not telling the truth when he denied that. The judge, he considered, was entitled to place weight on the fact that the appellant had not been frank with the respondent. However, he went on to say that:-

"Given his age it may be arguable that further consideration should have been given to his relocating but as he will soon be 18 this may well become moot. Nevertheless permission to appeal is granted limited to grounds 1 and 3."

7. At the hearing of the appeal before me I first raised the issue of whether or not the appellant came from the KAR or not. Ms Akinbolu stated that she believed that the village in which he had lived was in the province of Ninevah rather than in the KAR, but I indicated that I believed that the appellant's village was to the south of Erbil but within the Kar and that Erbil was the nearest major city rather than Mosul in which it was within judicial knowledge that fighting was still taking place.

8. Mr Bramble agreed that the issue of whether or not the appellant could be sent to Erbil as indicated by Judge Chana rather than be left in Baghdad was a moot question and that Judge Chana had given no reasons for stating that the appellant could be sent to Erbil, and that she had also erred when considering the appellant's return to Iraq by taking into account the appellant's age at a hypothetical date in the future rather than as at the date of hearing. It was also a matter of concern that Judge Chana had considered whether or not the appellant had had an ID card and would therefore be likely to obtain one rather than how that could be obtained, as that was necessary for him to enter the KAR.

9. Mr Bramble accepted the dynamics of this particular appellant being sent to Baghdad without a clear method of being able to move to the KAR and without the ability to obtain a sponsor in the KAR could mean that, taking into account the appellant's age as at the date of hearing, it would be unduly harsh to expect him to be returned to Baghdad where he would have no family support.

10. I consider that there are material errors of law in the determination of Judge Chana. She has not given reasons for concluding that the appellant would be returned to Erbil or would be able to live in the KAR, nor has she considered whether or not it would be unreasonable to expect the appellant, at the age he was at the date of hearing, to live in Baghdad without family support there.

11. Although Mr Bramble emphasised to me that permission had not been given on all grounds, I consider that it would be appropriate that this appeal be remitted to the First-tier Tribunal for findings of fact to be made on all relevant material issues. I do not consider that much weight should be placed on the argument that the Secretary of State had not discharged the burden upon her to trace the appellant's parents. I would emphasise that it is for the appellant to produce evidence of what steps he has taken to trace his parents through the Red Cross as that will be evidence which the First-tier Judge will wish to consider. It is also important that a clear finding is made as to exactly where the appellant's home village is - whether or not he comes from the Kurdish autonomous region or from outside that region. Similarly, it would be of help to the First-tier Judge to know exactly how far the appellant's home village was from both Mosul and Erbil.

Notice of Decision

12. For the above reasons I set aside the decision of First-tier Tribunal Judge Chana.

Directions

1. I direct that the appeal be remitted for hearing afresh in the First-tier.
2. A Kurdish Sorani interpreter will be required.
3. Time estimate: three hours.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge McGeachy